According to this opinion, the case began when warrants were
issued for

[Wells’] arrest . . . on 11 March 2010
for communications and acts with an online profile believed by [him] to be
associated with a child of less than 16 years of age. [Wells’] correspondence
with the online profile occurred between the dates of 4 May 2009 and 5 March
2010. In addition to the arrest warrants, a search warrant was issued
authorizing the seizure of computers from [his] house at 554 Howard Tant Road.

The same day the warrants were issued, Guilford
County detectives traveled to Raleigh to arrest [Wells] and execute the search
warrant. Detectives arrived at [his] house to find that [he] was not present.
Furthermore, execution of the search warrant yielded no evidence.

Thereafter, the police contacted [Wells’] place of
employment, the Raleigh Fire Department, Spring Forest Road Station, in order
to locate [him]. [Wells], who was at the station, was notified that police were
going to arrest him. Opting to avoid arrest at the fire station, a senior fire
official drove [Wells] to the Raleigh police substation on Litchford Road, at
which point [he] was taken into custody.

After being taken into custody, [Wells]
was read his Miranda rights. [He] initially indicated that he
was unsure whether he wanted an attorney. But when the detective responded that
he could not tell him anything further than what was on the arrest warrant and
would have to take him back to Guilford County, [Wells] proceeded to waive his
rights.

State v. Wells, supra.

The opinion also explains that while they were questioning
Wells, the detectives

elicited statements from [Wells] by
telling him that the more he helped them, the more they could help him; and
that if he was cooperative, they would inform the court and the district
attorney that he had been cooperative.

In response, [Wells] answered questions,
including informing detectives that he owned a Dell laptop computer that was
located on his bed at the fire station. As a result of the information obtained,
the police seized [his] laptop from the fire station.

State v. Wells, supra.

Wells was indicted on the charges noted above on July 6,
2010, after which he filed a motion to “suppress statements and a motion tosuppress evidence.”State v. Wells, supra. On May 6, 2011, the trial judge who had the
case entered an order in which he ruled on Wells’ motions to suppress.State
v. Wells, supra.

[Wells’] motion regarding his
statements was granted on the grounds that the statements were involuntary and
resulted from a promise, hope or reward. [His] motion regarding the evidence
retrieved from his laptop computer was denied based on a finding `[t]hat the location
of the computer would have been discovered inevitably by law enforcement
officials [ ]’ and, therefore, the conclusions that `[t]he search and seizure
of the defendant's computer was lawful[ ]’ and `[t]hat the [laptop] computer
was lawfully seized[.]’

State v. Wells, supra.

As this article explains, a confession is inadmissible under
the 14th Amendment’s due process clause if it was obtained by
measures, including promises of leniency, that presumptively render it
involuntary.This test derives from the
Supreme Court’s decision in Brown v.Mississippi, 297 U.S. 278 (1936), which is discussed in the article.

So the judge suppressed Wells’ statements, including his
statements about the laptop, but declined to suppress the laptop, finding that
its discovery was not the product of the violation of Well’s 14th
Amendment right to due process.Wells
then went to trial, and the jury found him guilty. State v. Wells, supra. He was sentenced to “consecutive terms of
14–17 months and 6–9 months, the latter term suspended on the condition that [he]
serve 24 months of supervised probation.”State v. Wells, supra.

So the only issue Wells raised on appeal was the denial of
his motion to suppress “the evidence seized from his laptop computer.”State
v. Wells, supra.The Court of
Appeals began its analysis of his argument that the trial judge erred in
denying the motion by explaining that when it reviews a trial judge’s denying a
motion to suppress,

Here,
defendant specifically contends that there is no competent evidence to support
the trial court's finding that his laptop computer would have inevitably been
discovered.

State v. Wells, supra.

The Court of Appeals also explained that the exclusionary
rule dictates that evidence

`derived from an unconstitutional
search or seizure is generally inadmissible in a criminal prosecution of the
individual subjected to the constitutional violation.’ State v.
McKinney, 361 N.C. 53, 637 S.E.2d 868 (North Carolina Supreme Court 2006).

Furthermore, `[w]hen evidence is obtained as the result of illegal police
conduct, not only should that evidence be suppressed, but all evidence that is
the “fruit” of that unlawful conduct should be suppressed.’ State v.
Pope, 333 N.C. 106, 423 S.E.2d 740 (North Carolina Supreme Court 1992).

State v. Wells, supra.

Here, the prosecution did not challenge the trial judge’s
granting Wells’ motion to suppress his statements as obtained by “promise, hope
or reward”, which made them involuntary under the 14th Amendment
rule noted above.State v. Wells, supra.The
only issue, then, was whether the laptop would inevitably have been discovered,
i.e., whether the discovery of the laptop was not a product of the violation of
Wells’ 14th Amendment rights.

The Court of Appeals explained that North Carolina,

like the majority of jurisdictions, has
adopted the inevitable discovery exception to the exclusionary rule, discussed
by the United States Supreme Court in Nix v. Williams, 467 U.S. 431 (1984). . . . `Under the inevitable discovery doctrine, evidence which
is illegally obtained can still be admitted into evidence as an exception to
the exclusionary rule when “the information . . . inevitably would have been
discovered by lawful means.”’ State v. Woolridge, 147 N.C.App.
685, 557 S.E.2d 158 (North Carolina Court of Appeals 2001) (quoting Nix
v Williams, supra.). . . .

Inevitable discovery is to be
determined on a case-by-case basis. . . . `[T]he prosecution has the burden of proving that the
evidence, even though obtained through an illegal search, would have been
discovered anyway by independent lawful means.’ State v. Woolridge, supra. The State must do so by a preponderance of the evidence. State v. Garner, 331
N.C. 491, 417 S.E.2d 502 (North Carolina Supreme Court 1992).

State v. Wells, supra.

The court then turned to the merits of this case, noting
that

[a]lthough it seems entirely logical that the police would
search the fire station for evidence regarding [Wells’] crimes and discover the
location of the laptop computer, there is no evidence in the record to support
this assumption. At the suppression hearing, the only argument supporting
inevitable discovery was defense counsel's statement that:

`When they wouldn't have found the computer at his
house, it's not even a remote stretch to go -- they knew exactly where he was
prior to this and that's where they would have gone. It wouldn't take a whole
lot of effort to be able to make that connection and go look for the computer
where he was located.’

This type of conclusory statement by counsel is not the type of evidence from
which `independent lawful means’ have been found to support a finding of
inevitable discovery.

As previously stated, although we
acknowledge that it seems logical that the laptop computer would have been
discovered, the State failed to provide any evidence in this case, either
through testimony concerning common practices of the fire department for
inventorying employee's belongings or through testimony regarding continued
search efforts in this case, indicating that investigating officers would have
located the laptop.

State v. Wells, supra.

The court also noted that “[i]nstead, the State asserts
various arguments on appeal in an attempt to bolster the validity of the search
and seizure of [Wells’] laptop computer.” State v.
Wells, supra.It went through the
prosecution’s arguments, and then found that they “lack merit.”State
v. Wells, supra.

The prosecution’s first argument was that Wells

impliedly consented to the search of
his laptop computer by telling the detectives where it was located. This
argument must fail, as it entirely ignores the trial court's unchallenged
conclusions that [Wells’] statements `were obtained as a result of promise,
hope or reward” and were therefore “given involuntarily.’

State v. Wells, supra.

Its second argument, which also implicated its third
argument, was that Wells had no

reasonable expectation of privacy in
the laptop placed in a common living area in a fire station. While the State
may be correct in asserting [he] had no reasonable expectation of privacy, we
need not address this issue in the present case given that `those subjected to
coercive police interrogations have an automatic protection from the
use of their involuntary statements (or evidence derived from their statements)
in any subsequent criminal trial.’ Chavez v. Martinez, 538
U.S. 760 (2003). . . .

The critical analysis concerning
inevitable discovery is not whether [Wells] had a reasonable expectation of
privacy based on where the laptop computer was located, but instead whether the
laptop computer would have been discovered by independent lawful means.

For the
same reason, the State's third argument, that a valid search warrant authorized
the seizure of data off the laptop computer, fails because the fact that
investigators applied for a search warrant to retrieve the laptop computer's
contents does not eliminate the taint that led to the discovery and seizure of
the laptop computer in the first instance.

State v. Wells, supra.

And, finally, the
Court of Appeals was equally impressed with the prosecution’s fourth and final
argument, which was that

discovery of the laptop computer was
inevitable because the laptop computer was known to be in existence and was the
focal point of the investigation. We do not doubt either of the State's
assertions; however, having knowledge that the laptop computer exists is
entirely different than knowing where the laptop computer may be found. At the
hearing on [Wells’] motions to suppress, no evidence was presented to the trial
court to show how or when the laptop computer would have been discovered by
independent lawful means.

State v. Wells, supra.

The court therefore held that “the trial court
erred in denying [Wells’]motion to suppress the evidence seized from his laptop
computer” and ordered “a new trial.”State v. Wells, supra.

and after the trial judge sentenced him to “an aggregate
sentence of six months”, Raphael Golb appealed.People v. Golb, 102 A.D.3d
601, __ N.Y.S.2d __, 2013 WL 322575 (New York Supreme Court – Appellate Division 2013).(The opinion notes that
the judge also vacated the “identity theft conviction under the first count of
the indictment” and therefore dismissed that charge.People
v. Golb, supra.)

To understand the charges, and the opinion this post
examines, it is helpful to understand a little about what was going on in the
case.It involves Norman Golb, Raphael
Golb’s father, who is a professor at the University of Chicago and who,
according to Wikipedia,

has been a key proponent of the
viewpoint that the Dead Sea Scrolls found in Qumran were
not the product of the Essenes, but rather of many different Jewish sects
and communities of ancient Israel, which he presents in his book Who
Wrote The Dead Sea Scrolls?: The Search For The Secret Of Qumran. In the
1990s, Golb was an advocate for the freeing of the Scrolls for academic
pursuit.

attracted limited support from other
scholars, and none from any major academics in the United States. From his home
in Chicago, where he has been teaching and publishing, he attributed this cold
shoulder to non-scholarly factors. `The personal animus, I regret to say, has
nothing to do with scholarship. It has to do with their anger that I came up
with a new and more cogent view of the origin of the scrolls.’

[b]etween 2006 and 2009, [Raphael Golb]
created more than 80 online aliases to advance his father’s views about the
Dead Sea Scrolls against what he saw as a concerted effort to exclude them.
Along the way, according to a jury . . . , he crossed from engaging in academic
debate to committing a crime.

Or, as the New York Supreme Court’s Appellate Division
noted, Raphael Golb is

the son of an expert on the Dead Sea
Scrolls. [He] set up email accounts in which he pretended to be other scholars
who disagreed with [his] father's opinion on the origin of the Scrolls. Among other
things, [Raphael Golb] sent emails in which one of his father's rivals
purportedly admitted to acts of plagiarism.

People v. Golb, supra.

According to the New York Times article, Golb’s “aliases begot other aliases, known on the
Internet as sock puppets: 20, 40, 60, 80.” The same article also notes that the
“sock puppets debated with other posters, each time linking to other sock
puppets to support their arguments, creating the impression of an army of
engaged scholars espousing Norman Golb’s ideas.”

And that brings us back to the opinion.Golb’s “principal defense was that these
emails were only intended to be satiric hoaxes or pranks.”People
v. Golb, supra. The court, though, was not persuaded:

[A]s it has been observed in the
context of trademark law, `[a] parody must convey two simultaneous -- and
contradictory -- messages: that it is the original, but also that it is not the
original and is instead a parody’ (Cliffs Notes, Inc. v. Bantam Doubleday
Dell Publishing Group, Inc., 886 F.2d 490, 494 [U.S. Court of Appeals for the 2d Circuit 1989]).

Here, the evidence clearly established that [Golb]
never intended any kind of parody. Instead, he only intended to convey the
first message to the readers of the emails, that is, that the purported authors
were the actual authors. It was equally clear that [Golb] intended that the
recipients' reliance on this deception would cause harm to the purported
authors and benefits to [him] or his father.

The
court's charge, [i.e., the judge’s instructions to the jury,] which
incorporated many of [Golb’s] requests, fully protected his constitutional
rights, and the court was not required to grant [his] requests for additional
instructions. The court carefully informed the jury that academic discussion,
parody, satire and the use of pseudonyms were protected by the 1st Amendment.

People v. Golb, supra.
(For more on parody and the 1st Amendment, check out the article you
can find here.)

As to the trial judge’s instructions to the jury, the
opinion explains that the

court also ensured that the jury
understood the terms `fraud’ and `defraud’ by expanding their definition and
advised the jury that `without the intent to deceive or defraud as to the
source of the speech with the intent to reap a benefit from that deceit, there
is no crime.’

The court was under no obligation to
limit the definitions of `injure’ or `defraud’ -- terms used in the forgery and
criminal impersonation statutes -- to tangible harms such as financial harm. .
. . The court also properly employed the statutory definition of `benefit’ as
`any gain or advantage’ to defendant or to another person (New York Penal Law §
10.00[17]).

People v. Golb, supra.

The Supreme Court – Appellate Division also did not buy
Golb’s argument that

it is constitutionally impermissible to
include an intent to influence a constitutionally-protected academic debate
within the concept of fraud, injury or benefit, that allowing injury to
reputation to satisfy the injury element would effectively revive the
long-abandoned offense of criminal libel, and that, in any event, the alleged
truth of the content of the emails should have been permitted as a defense.

However, the evidence established that [Golb]
intended harm that fell within the plain meaning of the term `injure,’ and that
was not protected by the 1st Amendment, including damage to the careers and
livelihoods of the scholars he impersonated. [Golb] also intended to create
specific benefits for his father's career.

The fact that the underlying dispute
between [Golb] and his father's rivals was a constitutionally-protected
debate does not provide any 1st Amendment protection for acts that were
otherwise unlawful.

People v. Golb, supra.

And the court explained that Golb

was not prosecuted for the content of
any of the emails, but only for giving the false impression that his victims
were the actual authors of the emails. The 1st Amendment protects the right to
criticize another person, but it does not permit anyone to give an
intentionally false impression that the source of the message is that
other person. . . .

People v. Golb, supra.

Finally, the Supreme Court – Appellate Division rejected
Golb’s

claims that the statutes under which he
was convicted were unconstitutionally vague or overbroad. None of these
statutes was vague or overbroad on its face or as applied (see People v. Shack, 86
N.Y.2d 529, 538 [1995]; Broadrick v. Oklahoma, 413 U.S. 601, 611–616 [1973)]).

The People were required to prove that [Golb]
had the specific fraudulent intent to deceive email recipients about his
identity, and to obtain benefits or cause injuries as a result of the
recipients' reliance on that deception. The statutes criminalized the act of
impersonation and its unlawful intent, not the content of speech falsely
imputed to the victims.

People v. Golb, supra.

(As Wikipedia explains, the void for vagueness doctrine is based on two
principles:the desire to ensure that
criminal statutes are not “too vague for the average citizen to understand”;
and that they do not give law enforcement officers too much discretion in
deciding who will and who will not be arrested and prosecuted.)

As the New York Times article
published on February 16 noted, Golb, who had been a lawyer, was disbarred as
the result of his felony convictions and, when the article went to press, was
“waiting to begin serving” his six-month sentence.

If you would like to read the arguments for
and against his conviction, I suggest you check out this article; it has the
best coverage of the issues I have seen.

Friday, February 22, 2013

Kenneth Royal Wheeler charging him with
the following: (1) Count One -- knowingly transmitting in interstate and
foreign commerce a communication containing a threat to injure the person of
another; specifically, at approximately 12:06 p.m., on or about March 12, 2012,
Defendant transmitted from Italy to the United States via the internet social
network `Facebook,’ `wrath commands’ to kill law enforcement officers and
children in violation of 18 U.S Code § 875(c); and (2) Count Two -- knowingly
transmitting in interstate or foreign commerce a communication containing a
threat to injure the person of another; specifically, at approximately 1:25
p.m., on or about March 12, 2012, Defendant transmitted from Italy to the
United States via the internet social network `Facebook,’ instructions to kill
law enforcement officers, politicians, judges, district attorneys, public
defenders and their children in violation of 18 U.S. Code § 875(c).

Personally, I’ve never encountered “wrath commands” so I
don’t really know what they are, but according to this article in the Denver Post, on March 12, 2012, when Wheeler was in Italy, he posted a “ramble” on Facebook that began with these
comments:

`STARDRAGON celestial overide
contigency 2 7 A release the P. A. E. virus in america. this is a holy war.
well. . . . i am not in america. even though i might come back the fact is i am
not in america right now. . . . so. . . . anything i put on facebook, threats
commands, activities, so on and so forth. the americans cant punish me for what
i say here in rome italy on facebook. so. kill cops. drown them in the blood of
thier children.’

As I have explained in prior posts, § 875(c) of Title 18 of
the U.S. Code is a threat statute.More
precisely, it provides as follows:

Whoever transmits in interstate or
foreign commerce any communication containing any threat to kidnap any person
or any threat to injure the person of another, shall be fined under this title
or imprisoned not more than five years, or both.

And as I have explained noted in prior posts, defendants often challenge
charges under the statute on the grounds that their communication did not rise
to the level of a “true threat" . . . which, as I note later, may or may not be an issue hre.

That, though is not Wheeler did, at least not with regard to
the issues the court is dealing with in this opinion.Here, the federal district court judge is
ruling on Wheeler’s motion to suppress certain evidence.U.S. v.
Wheeler, supra.

The judge began his opinion by noting that the defendant has
the

`burden of showing a constitutional
infirmity if a search or seizure was carried out pursuant to a warrant. If, on
the other hand, the police acted without a warrant, the burden of proof is on
the prosecution.’ U.S. v. Esser, 451 F.3d 1109 (U.S. Court of Appeals for the 10th Circuit 2006).

U.S. v. Wheeler, supra.So, since the search at issue in Wheeler’s
motion to dismiss was conducted pursuant to a warrant, the burden was on
Wheeler to show that the search somehow violated the 4th Amendment.U.S. v.
Wheeler, supra.

This, according to the opinion, is how the warrant came to be issued and what it authorized:

Special Agent Gerard Kavanagh submitted
an Affidavit in support of the Warrant. . . . Kavanagh has been employed as a
Special Agent with Immigration and Customs Enforcement Homeland Security
Investigations since February 2012 and assigned to the Grand Junction Office. .
. . The Affidavit stated that, on March 16, 2012, members of the Grand Junction
Police Department requested the assistance of Federal agents with regard to
threatening posts made by Kenneth Royal Wheeler on his Facebook page. . . .

The
Grand Junction Police Department became aware of these posts when a tip line
caller reported the postings. . . . The caller stated that Wheeler posted a
request for someone to kill all of the children at Stepping Stones Daycare, as
well as several specific police officers and their children. . . . The caller
reported that Wheeler lives a few blocks from the Stepping Stones daycare. . .
.

The affidavit stated that, on March
19, 2012, Kavanagh compared the photograph from Kenneth Wheeler's Colorado
Driver's License to the Facebook profile photographs on the `Kenneth Royal
Wheeler’ account. . . . Kavanagh believed the photographs were of the same
individual. . . .

Kavanagh stated his belief that the computers of Facebook
were likely to contain material relevant to the threats made in the postings,
including stored electronic communications and information concerning
subscribers and their use of Facebook, such as account access information,
transaction information, and other account information. . . .

That same day, United States Magistrate Judge Gudrun Rice approved the warrant. . . . The Warrant permitted the search
of `information associated with FACEBOOK Social Networking account located at
[www.facebook.com/profile.php?id=1304977903] and under the username of “Kenneth
Royal Wheeler” that is stored at the premises owned, maintained, controlled, or
operated by FACEBOOK CORPORATION, a Social Media provider headquartered at 1601
Willow Road in Menlo Park, California 94025.’. . . The Warrant allowed for
seizure of all contact and personal identifying information for the account,
all activity logs, photos uploaded to the account, records of communications
sent and received on the account, all `check ins’ and uses of the `like’
feature, and all other accounts that were `friends’ and to which the account
was a `fan’ of. . . .

U.S. v. Wheeler,
supra.

In moving to suppress, Wheeler argued that “the affidavit on
which the search warrant was issued did not meet the constitutional
requirements and, therefore, all evidence obtained as a result of the search
should be excluded.”U.S. v. Wheeler, supra.The judge who has the case
began his analysis of the argument by noting that the 4th Amendment
states, in pertinent part, that “no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be
searched, and the person or things to be seized.” U.S. v. Wheeler, supra.He
also pointed out that the 4th Amendment’s requirements or probable
cause and particularity

`serve two constitutional protections:
First, the magistrate's scrutiny is intended to eliminate searches not based
upon probable cause, therefore justifying the intrusion into the place to be
searched. Second, the particularity provision protects against general,
exploratory rummaging through the suspect's belongings.’ U.S. v. Sells, 463
F.3d 1148 (U.S. Court of Appeals for the 10th Circuit 2006)

U.S. v. Wheeler,
supra.

Wheeler “point[ed] out” that “he is charged with
transmitting threats in interstate commerce and argues that, because the
Warrant does not seek the fruits of that crime, the instrumentalities of that
crime or the contraband from that crime, it lacks the constitutionally required
nexus to the crime.” U.S. v. Wheeler,
supra.The judge, though, found that
his argument “improperly narrows the scope of the probable cause analysis and
asks the Court to Monday-morning quarterback what was, at the time the Warrant
was issued, an ongoing investigation.”U.S. v. Wheeler, supra.

The judge noted that when the warrant was issued, Kavanaugh
was investigating an

ongoing threat to the safety of Grand
Junction residents. He did not know whether there was an actual plan to bomb
the daycare and kill police officers or whether the comments on [Wheeler’s]
Facebook page were idle threats. The fact [Wheeler] was ultimately charged only
with making threats does not dictate the limits of the scope of the Warrant at
the time it was issued. . . . Instead, the Court must determine whether
the Affidavit established probable cause to issue the warrant, considering the
totality of the circumstances at the time the Warrant was issued.

U.S. v. Wheeler,
supra.He also explained that
probable cause is assessed by a

`totality of the circumstances’
standard under which the judge makes a “practical, common sense decision
whether, given all the circumstances set forth in the affidavit before him, . .
. there is a fair probability that contraband or evidence of a crime will be
found in a particular place.’

Wheeler claimed that Kavanaugh’s affidavit did not establish
probable cause to search

for the vast majority of the
information that was permitted under the Warrant. . . . For example, [he]
contends there is no probable cause to search for his `Friends’ list, what
pages he `liked’ or became a fan of, who he may have `poked’, or what items he
sold on Facebook's Marketplace. . . . In essence, [he] is not arguing about
whether there was probable cause to issue the Warrant at all; rather, [Wheeler]
is challenging the scope of the warrant and whether the Affidavit established
probable cause for such a warrant.

U.S. v. Wheeler,
supra.

The judge did not buy Wheeler’s argument, instead finding
that the warrant was not

overbroad
and the Affidavit established probable cause to search for all of the aspects
covered by the Warrant. The comments posted on Wheeler’s Facebook page
repeatedly referred to [his] `religious operatives and followers’ and
instructed them to kill cops (generally and a particular list of officers) and
to `commit a massacre in the stepping stones preschool and daycare, just walk
in and kill everyone’. . . .

The
comments also said `nobody in america knows who i have been associating with
outside america, we are ready, we are coming back, and we are doing this. and
just like i told them, when the cuffs go on the bombs go off.’. . . Thus, the
comments on [his] Facebook page plainly indicated Wheeler was not acting alone,
but it failed to provide any insight into with whom he may have been
conspiring.

The Affidavit, in turn,
states that the purpose of the Warrant is to seize `conspiratorial
communications with others’ regarding `[t]hreats and threatening
communications, incitements to violence, [and] threats to use destructive
devices’, as well as obtaining `[r]ecords relating to who created, used, or
communicated with the user ID, including records about their identities and
whereabouts.’ . . .

Given the comments on [Wheeler’s] Facebook
page about the involvement of others in his plans, Kavanaugh could have
reasonably believed information obtained from Facebook, such as who [his]
`friends’ were, what pages he `liked’, and who he `poked’, would provide
insight into who these other actors were and where they may have been located.
The identity and location of these other actors is evidence related to the
crime for which [Wheeler] was being investigated. Accordingly, Kavanaugh's
Affidavit established probable cause for the search of [Wheeler’s] Facebook
account. . . .

U.S. v. Wheeler,
supra.

The judge therefore found that “the Affidavit upon which the
Warrant was issued sufficiently established probable cause to believe that the
search would lead to evidence of a crime” and so denied Wheeler’s motion to
suppress.U.S. v. Wheeler, supra.

Finally, an aside that has nothing to do with Wheeler’s
motion to suppress.The Denver Post story noted above says that at what may have been a hearing on the motion to
suppress, Wheeler’s lawyer told the district court judge that Wheeler

had no friends to communicate with on
his Facebook page, so his call for `followers’ to kill Grand Junction police
officers and attack a day-care center wasn't a threat, his lawyer said
Thursday.

`Mr. Wheeler had eliminated all of the
people he had friended on Facebook. It means you are not communicating with
anybody.’

`At some level, it means nobody is
receiving the communication,’ Abraham V. Hutt, Wheeler's lawyer, told U.S.
District Judge William J. Martinez.

I don’t see how, even if this is true, it had anything to do with the motion to
suppress. To me -- and I could be wrong about this -- it sounds more like an argument that
what Wheeler posted could not be a “threat” because no one was reading it. . .
.

Wednesday, February 20, 2013

After she was convicted of “engaging in an organized scheme
to defraud, in violation of section 817.034(4), Florida Statutes”, Kathy
Dent appealed.Dent v. State, __ So.3d ___, 2013 WL 440117 (Florida Court of Appeals 2013).The scheme at issue
involved a computer program that Deputies in the Palm Beach County Sheriff’s
Office used to sign up for overtime work.Dent v. State, supra.

According to the opinion, the Sheriff’s Office provides

deputies for hospital duty to guard an
inmate or arrested person who is admitted to a hospital. Initially, a deputy on
the current shift is assigned to the hospital when the prisoner is admitted,
and that deputy serves until the end of his or her shift, at which time it
becomes an overtime assignment.

To fill these assignments, the
Sheriff's department utilizes a computer program which allows deputies to sign
up to work overtime shifts. The lieutenant on the shift when the prisoner is
admitted to the hospital creates a computer record of the prisoner's
admittance. It generates a weekly list of overtime shifts for the week for that
prisoner, although if the prisoner is released from the hospital those overtime
shifts would not be used. The positions for new overtime shifts become
available for signup at midnight on Sunday night for the following week.

To obtain the right to work one of
these shifts, deputies must log into the system and sign up for one shift at a
time. Once the deputy signs up for a shift he/she must wait 48 hours before
signing up for another one. No one is allowed to sign up another person for an
overtime shift except supervisors who are signing deputies to cover a present
shift. Lieutenants can also sign up others for overtime shifts.

Complaints
were raised because several deputies noticed that . . . Kathy Dent was already assigned
to work various overtime shifts when the shifts became available at midnight on
Sunday night. An investigation revealed that Dent was assigned on the computer
system to a hospital overtime shift 388 times. Dent's friend, Lieutenant Sandra
Nealy, assigned Dent to work 100 hospital overtime shifts during a one-year
period. Although Dent did not work all the overtime shifts she was assigned,
she earned more than $18,000 working hospital overtime shifts.

Dent v. State, supra.

The investigation resulted in Dent’s being charged, as noted
above, with engaging in a scheme to defraud in violation of Florida Statutes §
817.034(4), which makes it a crime to “engage[] in a scheme to defraud and
obtain[] property thereby”.Dent v. State, supra. The statute defines
“property” as “anything of value,” and defines “scheme to defraud” as

a systematic, ongoing course of conduct
with intent to defraud one or more persons, or with intent to obtain property
from one or more persons by false or fraudulent pretenses, representations, or
promises or willful misrepresentations of a future act.

The information that was used to charge Dent alleged that
she “`did engage in a scheme constituting a systematic, ongoing course of
conduct with intent to defraud one or more persons, or to obtain property from
one or more persons by false or fraudulent, representations, or promises, and
did obtain property from one or more of such persons. . . .’” Dent v. State, supra.And the Court of Appeals’ opinion notes that

[a]t trial, the state presented its
theory that Dent's manipulation of the computer overtime signup system
prevented other Sheriff's deputies from signing up for overtime, and that other
deputies lost the opportunity to get these assignments and earn overtime pay.
Dent earned over $18,000 in overtime pay for overtime shifts that she actually
worked. This was not a case, however, where she was paid for shifts that she
did not work. The jury convicted her of a third degree felony, prompting this
appeal.

Dent v. State, supra.

On appeal, Dent argued that

the state failed to prove that she
obtained `property’ within the meaning of the statute when all the state proved
was the inability of other deputies to sign up for the opportunity to obtain
overtime. In other words, her conduct did not amount to a crime

Dent v. State, supra.

The Court of Appeals began its analysis of her argument by
noting that in adopting Florida Statutes § 817.034, entitled the “Florida
Communications Fraud Act,”, the Florida legislature “specifically” articulated
“its intent in adopting this criminal statute”:

`(1) Legislative intent.—

(a) The Legislature recognizes that schemes to
defraud have proliferated in the United States in recent years and that many
operators of schemes to defraud use communications technology to solicit
victims and thereby conceal their identities and overcome a victim's normal
resistance to sales pressure by delivering a personalized sales message.

(b) It is the intent of the Legislature
to prevent the use of communications technology in furtherance of schemes to
defraud by consolidating former statutes concerning schemes to defraud and
organized fraud to permit prosecution of these crimes utilizing the legal
precedent available under federal mail and wire fraud statutes.’

Dent v. State, supra.

Since the Florida Legislature directed it to use federal
cases involving fraud prosecutions under federal law as a source of guidance in
interpreting this statute, the Court of Appeals noted that “we look to those
precedents and conclude that the opportunity to sign up for overtime, which was
deprived to other deputies by Dent's conduct, is not “property” within the
meaning of the statute.”Dent v. State, supra.

for corruption of the process by which
banks were chosen as depositories for funds from various toll bridges. The
commission in charge of the funds conducted a competitive bidding process with
various banks for their short-term deposits. The two public officials
interfered with the process by notifying one bank of the bid information in
advance, allowing that bank to outbid the other banks. . . . In return, the
public officials received campaign contributions and favorable treatment on
loans from the bank.

The government asserted that what
the other banks lost in this scheme was a fair opportunity to bid in the
process. The court concluded, however, that this loss of opportunity was not
`property’ within the meaning of the bank and wire fraud statutes.

`Here, . . . the money had not yet been
deposited, and there is no way of knowing to which, if any, of the bidding
banks it would have gone. . . . The issue . . . is whether the competing banks'
interest in having a fair opportunity to bid for something that would become
their property if and when it was received is in itself property. . . .

`. . . .[T]o determine whether a particular
interest is property for purposes of the fraud statutes, we look to whether the
law traditionally has recognized and enforced it as a property right. . . .The competing banks' interest in
a fair bidding opportunity does not meet this test. Clearly, each bidding
bank's chance of receiving property -- the deposits if its bid were accepted --
was, at least in part, dependent on the condition that the bidding process
would be fair.

This condition, which is all that the bidding banks allegedly
lost, was thus valuable to them, but it is not a traditionally recognized,
enforceable property right. . . . Violation of this condition may
have affected each bidding bank's possible future receipt of property, but that
does not make the condition property.’

U.S. v. Henry, supra.

The Court of Appeals noted that in the Henry case, the “loss of an opportunity interest did not constitute
`property’ within the meaning of the wire and mail fraud statutes,” which “govern
the interpretation of § 817.034.”Dent v. State, supra.It also noted that another federal court
applied the same reasoning in U.S. v.
Alsugair, 256 F.Supp.2d 306 (U.S. District Court for the District of New Jersey 2003).Dent v. State, supra.

In Alsugair, the
defendant “was charged with wire fraud in a scheme to defraud English skills
testing services by allowing imposters to take English tests for foreign
students” under a statute that “made it a crime to engage in a scheme to obtain
money or property by false pretenses.” Dent
v. State, supra.The Alsugair court explained that in order
to

`”determine whether a particular
interest is property for purposes of the fraud statutes, we look to whether the
law traditionally has recognized and enforced it as a property right.”’ U.S
v. Henry, supra. Two of the hallmarks of traditional property are
exclusivity.’

U.S. v. Alsugair,
supra. The Court of Appeals noted that what was “[i]mportant to this case”
in the Alsugair court’s reasoning was
its “reiteration of the hallmarks of property, namely exclusivity and
transferability, neither of which are present in the lost opportunity of
working overtime, which is what the state sought to prove in this case.”Dent v.
State, supra.

It also noted that it had “determined that expectation
interests do not constitute property under similar definitions of property in
the theft statute.”Dent v. State, supra.In Balcor
Property Management, Inc. v. Ahronovitz, 634 So.2d 277 (Florida Court of
Appeals 1994), the court found that to have a cognizable interest in property,
“the `owner’ must be capable of having `an interest in the property upon which
another person is not privileged to infringe without consent’”.Dent v.
State, supra (quoting Florida Statutes § 812.012(5)).Section 812.012(5) defines “property of
another,” as used in Florida theft statutes, as “property in which a person has
an interest upon which another person is not privileged to infringe without
consent, whether or not the other person also has an interest in the property.”

The Court of Appeals then found that in this case,

what the state alleged was lost was the
opportunity for other deputies to work for overtime pay. This opportunity did
not belong to any one of them. It simply does not fit the definition of
property traditionally used in criminal prosecutions and specifically not used
in similar federal statutes. See U.S. v. Henry, supra.

While
Dent's manipulation of the signup system for overtime duty may have violated
the policies of the department, and may be grounds for discipline or termination,
she did not obtain `property’ within the meaning of the statute. Therefore, no
violation of section 817.034 occurred.

Dent v. State, supra.

It therefore reversed Dent’s conviction and directed that
the sentence imposed on her be vacated.Dent v. State, supra.According to the news story you can find
here, she was one of “seven jail supervisors” who were fired and charged with
fraud.For more on the impact this
decision will have on other pending and completed cases, check out the story
you can find here.